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Queensland Teachers' Union of Employees v TAFE Queensland; Together Queensland, Industrial Union of Employees v TAFE Queensland[2015] ICQ 18

Queensland Teachers' Union of Employees v TAFE Queensland; Together Queensland, Industrial Union of Employees v TAFE Queensland[2015] ICQ 18

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Queensland Teachers’ Union of Employees v TAFE Queensland; Together Queensland, Industrial Union of Employees v TAFE Queensland [2015] ICQ 018

PARTIES:

QUEENSLAND TEACHERS’ UNION OF EMPLOYEES

(appellant)

v

TAFE QUEENSLAND

(respondent)

FILE NO/S:

C/2014/48

PARTIES:

TOGETHER QUEENSLAND, INDUSTRIAL UNION OF EMPLOYEES

(appellant)

v

TAFE QUEENSLAND

(respondent)

FILE NO/S:

C/2014/49

DELIVERED ON:

23 July 2015

DELIVERED AT:

Brisbane

HEARING DATE:

29 January 2015

MEMBER:

Martin J, President

ORDER/S:

Each appeal is dismissed.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – AGREEMENTS – OTHER MATTERS – where the Commission was asked by the Queensland Teachers Union to assist the parties to make a certified agreement – where that decision was overturned on appeal – where upon return of the matter it was held that s 831 of the Industrial Relations (Fair Work Act Harmonisation No 2) and Other Legislation Amendment Act 2013 operated to prevent the Commission from proceeding to deal with a proposed certified agreement and that the applicants did not have an accrued right to have an agreement certified – whether the Commission’s jurisdiction to determine a matter by arbitration under the former section 149 of the Industrial Relations Act 1999 was engaged by the Deputy President’s previous decision  - whether s 831 negated any accrued right

CASES:

Industrial Relations Act 1999, Chapter 6, s 149

Industrial Relations (Fair Work Act Harmonisation No 2) and Other Legislation Amendment Act 2013, s 831

Queensland Teachers Union of Employees v Department of Education, Training & Employment (CA/2013/57) – Decision

State of Queensland v Queensland Teachers’ Union & Anor [2014] ICQ 012

APPEARANCES:

C/2014/48

J W Merrell, instructed by TressCox Lawyers for the appellant

C J Murdoch instructed by Minter Ellison for the respondent

C/2014/49

K Mckay (of Together Queensland) for the appellant

C J Murdoch instructed by Minter Ellison for the respondent

  1. [1]
    In November 2013 the Industrial Relations (Fair Work Act Harmonisation No 2) and Other Legislation Amendment Act 2013 (“the Amending Act”) came into force and effected a number of amendments to the Industrial Relations Act 1999 (“the Act”). In particular, it changed the way in which parties could bargain and how the Commission might be involved in the creation of certified agreements.
  2. [2]
    At the heart of this appeal is one of the sections introduced by the Amending Act –

“831  Existing arbitrations

  1. (1)
     This section applies if, before the introduction day—
  1. (a)
     the commission's jurisdiction to determine a matter by arbitration was engaged under section 149 of the pre-amended Act; and
  1. (b)
     the commission had not made a determination for the matter under that section.
  1. (2)
     For subsection (1), it does not matter whether or not the commission has starting hearing the matter.
  1. (3)
     The commission must determine the matter by arbitration under section 149 of the pre-amended Act.
  1. (4)
     However, if the employer and 1 or more parties reach agreement on the terms of a proposed certified agreement to be made between them before the commission makes the arbitration determination for the matter—
  1. (a)
     the parties must take the steps under chapter 6 of the pre-amended Act necessary to have the agreement certified; and
  1. (b)
     if an application is made under section 156 of the pre-amended Act—the commission must deal with the application under that section; and
  1. (c)
     the arbitration ends when the agreement is certified.”
  1. [3]
    The effect of that section is made clear when considered against the other amendments which prevented new agreements from being certified unless there was an underlying “modern award”.[1]
  2. [4]
    In this matter, Deputy President Bloomfield held that s 831 operated to prevent him from proceeding to deal with a proposed certified agreement and that the applicants did not have an accrued right within the meaning of the Acts Interpretation Act 1954 to have an agreement certified.

History of the matter

  1. [5]
    In order to understand the application of the Amended Act it is necessary to set out some of the history of this matter.
  2. [6]
    In July 2013 the Deputy President was asked by the Queensland Teachers Union to assist the parties to make a certified agreement. (At that time the TAFE employees were employed by the Department of Education, Training and Employment.) After considering the matters raised before him, the Deputy President concluded as follows:

“[28]  On my analysis, the present situation is as follows:

  • QTU (and TQ) seek a new Educational Employees (only) CA;
  • Negotiations between QTU/TQ and DETE in relation to that claim have broken down and QTU has declared a breakdown in such negotiations pursuant to s. 149(1)(b) of the Act;
  • My discussions with the parties on 24 July 2013 has led me to conclude that it is not likely that further conciliation will result in the matter at issue (being QTU’s claim for a replacement Educational Employees (only) CA) being resolved within a reasonable timeframe, if at all;
  • QTU (supported by TQ) urges me to refer that unresolved matter to arbitration in accordance with s. 149 of the Act;
  • That position is opposed by DETE, which seeks to be given the opportunity to ballot its employees about their preparedness to be covered by a new “whole of TAFE” certified agreement – with such proposal to be advanced to employees on 31 July 2013 with a ballot to be conducted between 26 and 30 August 2013;
  • Approximately fifty percent of the employees who are proposed to be balloted by DETE are already the subject of proceedings under s. 149 in the Core Arbitration proceedings; and
  • Neither QTU, TQ or UV support DETE’s proposal for a single certified agreement covering all of TAFE’s award-based employees.

[29] In the normal course of events, I might have been prepared to allow the potentially affected employees to decide whether they will accept DETE’s proposal for a single “whole of TAFE” certified agreement, after considering the contents of DETE’s proposal.

[30] However, noting the provisions of s. 147(A)(8) as well as the position that something in the order of fifty percent of the employees DETE proposes to ballot, in relation to its proposal, are already the subject of s. 149 proceedings in this Commission (in matter number CA/2012/289), it appears to me that any attempt to conduct such a ballot would be null and void and of no effect.

[31] Accordingly, having reached that view and noting the strong desire of both the QTU and TQ to have the unresolved subject matter of QTU’s claim for a new Educational Employees’ (only) CA referred to arbitration, I propose to take that course of action.

[32] As such, I formally refer QTU’s unresolved claim for a new Educational Employees (only) CA to arbitration in accordance with the provisions of s. 149, most specifically s. 149(1)(b).”[2]

  1. [7]
    An appeal from that decision came to this Court and an order was made allowing the appeal and remitting the matter to the Commission to proceed in accordance with the reasons given.[3] The effect of that decision was that the entire matter returned to the Commission for further consideration.

The former legislation

  1. [8]
    The reference in the Deputy President’s reasons to s 149 of the Act is a reference to that section as it stood prior to the Amending Act. So far as is relevant, the unamended section 149 provided:

“149  On my analysis, the present situation is as follows:

  1. (1)
     This section applies if—
  1. (a)
     the commission considers conciliation has not been successful because industrial action—
  1. (i)
     has been protracted; or
  1. (ii)
     is threatening, or has caused, significant damage to—
  1. (A)
     the economy or local community, or part of the economy; or
  1. (B)
     a single enterprise; or
  1. (C)
     employees; or
  1. (iii)
     is threatening to endanger, or has endangered, the personal health, safety or welfare of the community or part of it; or
  1. (b)
     the commission considers it is not likely that further conciliation will result in the matter being settled within a reasonable time, considering, among other things, the history of industrial relations in the enterprise or industry to which the proposed agreement is to relate; or
  1. (c)
     all the negotiating parties consider conciliation has been unsuccessful and ask the commission to determine the matter by arbitration.

…”

  1. [9]
    Section 149 was substantially amended by the Amending Act and its operation is subject to s 140G which has the effect of confining the capacity to make a certified agreement to employees who are covered by a modern award and employers of employees covered by a modern award. The relevant employees in this application are not covered by a modern award.

Was the jurisdiction engaged?

  1. [10]
    Notwithstanding the absence of a modern award, s 831 requires that the Commission must determine a matter by arbitration under s 149 of the pre-amended Act if the Commission’s jurisdiction to determine a matter by arbitration was engaged under s 149 of the pre-amended Act. This requires an answer to the question:  What engages the Commission’s jurisdiction to determine a matter by arbitration under the former section 149?
  2. [11]
    The former s 149 applies in three circumstances:
    1. (a)
      Where the Commission considers conciliation has not been successful because of industrial action of a particular nature; or
    2. (b)
      The Commission considers it unlikely that further conciliation will result in the matter being settled after consideration of relevant circumstances; or
    3. (c)
      All the negotiating parties consider conciliation has been unsuccessful and ask the Commission to arbitrate.
  3. [12]
    In this case, the Deputy President had formed the view that s 149(1)(b) was relevant, that is, he considered it unlikely that further conciliation would result in the matter being settled within a reasonable time.  But, that decision was set aside by virtue of the order made in the appeal proceedings.
  4. [13]
    In this case, as a result of the decision of this Court referred to above, none of the events specified in the pre-amended s 149(1) can be regarded as having occurred. In particular, s 149(1)(b) (to which the Deputy President specifically referred) may not be relied upon by the appellants because the decision of this Court concerned a misconstruction by the Commission of the word “matter”. In order for s 831 to apply it would be necessary for the Commission to have resolved in accordance with one of the matters set out in s 149(1). That has not happened. Section 831 does not apply and the Commission may not, under that section, proceed to arbitration in either of these matters.

Is there an accrued right?

  1. [14]
    Section 20 of the Acts Interpretation Act 1954 provides:

“20 Saving of operation of repealed Act etc.

  1. (1)
     In this section—

Act includes a provision of an Act.

repeal includes expiry.

  1. (2)
     The repeal or amendment of an Act does not—
  1. (a)
     revive anything not in force or existing at the time the repeal or amendment takes effect; or
  1. (b)
     affect the previous operation of the Act or anything suffered, done or begun under the Act; or
  1. (c)
     affect a right, privilege or liability acquired, accrued or incurred under the Act; or
  1. (d)
     affect a penalty incurred in relation to an offence arising under the Act; or
  1. (e)
     affect an investigation, proceeding or remedy in relation to a right, privilege, liability or penalty mentioned in paragraph (c) or (d).
  1. (3)
     The investigation, proceeding or remedy may be started, continued or completed, and the right, privilege or liability may be enforced and the penalty imposed, as if the repeal or amendment had not happened.
  1. (4)
     Without limiting subsections (2) and (3), the repeal or amendment of an Act does not affect—
  1. (a)
     the proof of anything that has happened; or
  1. (b)
     any right, privilege or liability saved by the operation of the Act; or
  1. (c)
     any repeal or amendment made by the Act; or
  1. (d)
     any savings, transitional or validating effect of the Act.
  1. (5)
     This section is in addition to, and does not limit, sections 19 and 20A, or any provision of the law by which the repeal or amendment is made.”
  1. [15]
    All provisions of the Acts Interpretation Act 1954 are subject to s 4 of that Act which provides:

“The application of this Act may be displaced, wholly or partly, by a contrary intention appearing in any Act.”

  1. [16]
    Much of the argument about s 20 concerned the question of whether or not the appellants did have an accrued right. It is unnecessary for that matter to be decided because s 831 displaces, by a contrary intention, the effect of s 20 of the Acts Interpretation Act 1954. The changes which were made to the capacity of parties to enter into certified agreements applied from the date of operation of those sections in the newly amended Act. Section 831 is designed to deal with arbitrations which, while they may not have commenced by way of a hearing, had been intended to proceed.
  2. [17]
    One of the principal guides for the interpretation of any statute is that any section must be construed in context. The “context” can be an entire statute of a particular part of one. The Acts Interpretation Act 1954 sets out a number of matters which are taken to be part of an Act. One of those is contained in s 14(2) of that Act. It provides that a heading to a section is part of the Act and, so, it should be taken into account. The heading of s 831 is: “Existing arbitrations”. That assists in understanding s 831. The reference to “existing arbitrations” supports the conclusion that the Commission must have reached one of the relevant conclusions in the unamended s 149 and, thus, moved to the initial stage of an arbitration.
  3. [18]
    The intention of the legislation is clear. From the relevant commencement date, the Commission may not make a certified agreement in the absence of a relevant modern award unless the jurisdiction to determine by arbitration had been engaged. Any right which might have existed is subject to that provision and, as a result, s 20 does not allow for the pursuit of any “right” unless it comes within the purview of s 831.

Conclusion

  1. [19]
    The Deputy President was correct. The jurisdiction to determine a matter by arbitration had not been engaged and s 831 did evince a contrary intention sufficient to negate any “accrued right”.
  2. [20]
    Each appeal is dismissed.

Footnotes

[1]   See Chapter 6, Industrial Relations Act 1999.

[2]Queensland Teachers’ Union of Employees v Department of Education, Training & Employment, (CA/2013/57) – Decision

[3]State of Queensland  v Queensland Teachers’ Union & Anor [2014] ICQ 12.

Close

Editorial Notes

  • Published Case Name:

    Queensland Teachers' Union of Employees v TAFE Queensland; Together Queensland, Industrial Union of Employees v TAFE Queensland

  • Shortened Case Name:

    Queensland Teachers' Union of Employees v TAFE Queensland; Together Queensland, Industrial Union of Employees v TAFE Queensland

  • MNC:

    [2015] ICQ 18

  • Court:

    ICQ

  • Judge(s):

    Martin P

  • Date:

    23 Jul 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
State of Queensland v Queensland Teachers' Union & Anor [2014] ICQ 12
2 citations
Jump To
Cite 1 - [2014] ICQ 12
Cite 2 - [2014] ICQ 12

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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